Belan and Minister for Immigration, Multicultural and Indigenous Affairs

[2003] AATA 1352

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1352

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   V2002/1411

GENERAL ADMINISTRATIVE  DIVISION		)
Re		STEFAN BELAN

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr S P Estcourt QC., (Deputy President)

Date23 December 2003

PlaceMelbourne

Decision The decision under review is set aside and the matter remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds. 

[Sgd S P Estcourt QC]

Deputy President

CATCHWORDS

Immigration – spouse visa – character test- false and misleading information – exercise of discretion – decision under review set aside.

Migration Act 1958 – s501

Goldie v Minister for Immigration and Multicultural Affairs (1999) FCA 1277

Minister of State for Immigration, Local Government and Ethnic Affairs v Dhillon FCA 8 May 1990

Re Lachmaiya and Department of Immigration and Ethnic Affairs (1994) 19 AAR 115

Vaitaiki v Minister for Immigration and Ethnic Affairs 91998) 150 ALR 608

REASONS FOR DECISION

23 December 2003 Mr S P Estcourt QC., (Deputy President)          

1.      This is an application for the review of a decision of the respondent refusing to grant to the visa applicant, Yuliya Belan, a spouse visa to allow her to come to Australia to live with her husband, Stefan Belan. 

2. On 6 December 2002, the respondent informed the visa applicant that her spouse visa had been refused on the grounds that she failed to pass the “character test” posed by s501 of the Migration Act 1958 and that the respondent had decided not to exercise his discretion under Ministerial Direction No. 21 to nevertheless grant the visa.

3.      The visa applicant is a 26 year old citizen of Kazakhstan, who first met the review applicant in Almaty in December 1996 when she was 19 years old and he was 17 years old.   He was visiting Almaty in Kazakhstan with his father, who at that time was the president of the Golden Sports Company which produced sports radio programs for broadcast on Russian Radio 1 from Moscow.

4.      The young couple spent 3 days together in Almaty seeing the city and the visa applicant invited the review applicant home to meet her mother, her sister and grandmother with the consequence that when the review applicant returned home he could not forget their meeting and the couple stayed in contact. 

5.      The visa applicant and the review applicant met again in March 1997 when the visa applicant visited Moscow for a few days.  However, on 1 May 1997, the review applicant migrated to Australia with his father who had been awarded a distinguished talent visa on the basis of his involvement in disabled sport. 

6.      The review applicant, Stefan Belan, has been an Australian citizen since 2001.

7.      Once in Australia, the review applicant kept in contact with the visa applicant, their friendship grew and their relationship became more serious as they began to telephone each other and e-mail each other more regularly.

8.      In February 2000 the review applicant and the visa applicant discussed marriage and after the review applicant obtained his Australian citizenship on 9 August 2001 he travelled to Russia and the couple were married.  The review applicant had only 3 weeks in Russia before he had to return to Australia to fulfil study and work commitments.

9.      The concerns the respondent has as to the visa applicant’s character arise out of the circumstances of two visa applications lodged before the spouse visa application which is the subject of this appeal. 

10.     On 3 October 2000, the visa applicant lodged an application for a business short stay visa in Moscow.  In that application she stated that she was the administrator of a football team operated by her employer Sport Club Glotur.  The visa applicant also stated that she was the Executive Secretary of the International Amputee Football Federation of Kazakhstan.  This visa application was refused on the basis that the decision-maker was unable to verify the applicant’s work activities. 

11.     On 5 June 2001, the visa applicant lodged an application for a sport visa.  In that application she stated that she was employed as an administrator of football and that she was the Secretary of the International Amputee Football Federation of Kazakhstan.  In support of her application she provided a letter from the Russian President of the IAFF, Mr G. Lunacharsky.  This visa application was also refused because the decision‑maker was not satisfied that the proposed visit was reasonable or that the visa applicant would abide by visa conditions. 

12. The concept of good character for the purposes of the “character test” under s501 of the Act involves the “enduring moral qualities of a person”.. In Goldie v Minister for Immigration & Multicultural Affairs [1999] FCA 1277 at para. 8, Spender, Drummond and Mansfield JJ said:

“Section 501 does not charge the decision-maker with the task of making a judgment, general in nature, about the character of a person, i.e. a judgment to which the statutory context is of no relevance.  The concept of ‘good character’ in s.501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that.  It is concerned with whether the applicant for entry’s character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.”

13.     The respondent submits that the visa applicant does not pass the character test based on 6 grounds relating to the information provided in, and in connection with the business visa application and the sports visa application.  Those grounds are set out in paras.13-18 of the respondent’s statement of facts and contentions and are as follows:

“13.     The respondent submits that in relation to the business visa application:

(a)during the interview, the visa applicant was asked why she has failed to notify the embassy that she no longer worked for Sportsclub Glotur prior to a decision being made on her business visa application.  The visa applicant stated that she did not inform the embassy because Mr Lunacharsky told her that if she did, it was likely that her business visa application would be refused (T22p108);

(b)in a letter from the visa applicant to the Australian Embassy dated 28 October 2002 (the October letter), the visa applicant stated that it was intended that she would accompany Mr Lunacharsky to Australia (in his capacity as president of IAFF) (T24p126).  Departmental records show that Mr Lunacharsky travelled to Australia on 11 October 2000 and returned on 31 October 2000.  The visa applicant lodged her business application eight days prior to Mr Lunacharsky departed for Australia on that occasion.  As the standard processing time for a business visa application is ten days, it was considered that the visa applicant’s reason for wishing to travel to Australia, was not to accompany Mr Lunacharsky, but to visit the applicant.  Furthermore, Mr Lunacharsky’s letter does not state that the visa applicant would be travelling to Australia with him; and

(c)the Russian IAFF support was manufactured with the assistance of her future father in-law so that the visa applicant could visit Australia to see the applicant.  Her future father in-law had previously worked for the IAFF and he introduced her to Mr Lunacharsky.

14.The visa applicant’s assertion in her sports visa application that she intended to travel to Australia as a representative of the IAFF was manufactured with the assistance of her future father in-law so that she could visit Australia to see the applicant.  In the October letter, (T24p127), the visa applicant stated that the previous arrangements between the IAFF to visit a number of disabled sporting clubs in Victoria were still in force.  Departmental records demonstrate that Mr Lunacharsky did not hold a valid visa at this time, nor did he lodge an application.  Mr Lunacharsky had not held a visa since 31 October 2000, nor had he applied for a visa since that time.  Accordingly, the respondent submits that the visa applicant would not have been able to travel to Australia with Mr Lunacharsky as claimed.

15.During the interview, the visa applicant was asked how many visa applications she had lodged prior to the spouse visa application.  The visa applicant stated that she had only lodged the business visa application, and she denied lodging the sports visa application (T22 p108).  In a letter from the visa applicant to the Australian Embassy, Moscow, dated 23 June 2002 (the June letter), the visa applicant stated that during the interview she had only remembered the second rejection letter and that she had confused how many applications she had lodged prior to the spouse visa application.  The respondent submits that the visa applicant’s assertion that she was confused is not plausible.

16.During the interview, the visa applicant stated that prior to lodging the business visa application, she was the administrator of a volleyball team (T22p105).  This is contrary to her business visa application where she stated that she was the administrator of a football team.  In response to the assertion at page 6 of the applicant’s statement of facts and contentions that the visa applicant made a simple mistake at the interview when she said that she was a volleyball administrator, the respondent submits that this claim lacks credibility, especially when her role in the sports club was of fundamental importance to the business visa and sports visa applications.

17.In relation to the spouse visa application, the visa applicant was unable to provide a reasonable explanation of her role in the IAFF and her intended activities in Australia.  The visa applicant also displayed a very poor knowledge of local organisations directly related to the professional background as claimed in her business and sports visa applications.

18.The visa applicant stated in the June letter that in relation to the business visa and sports visa applications, she intended to travel to Australia in her capacity of an executive secretary to the President of the Federation of Amputees (T23p116).  In the October letter, the visa applicant stated she intended to travel to Australia under the business visa and sports visa applications on behalf of the International Amputee Football Federation (ie not the Federation of Amputees).”

14.     In his helpful closing submissions, Mr Wood, counsel for the respondent, raised some allied matters in his development of the arguments contained in the paragraphs set out above.  I do not stay to canvas them in view of the decision that I have reached in this matter, except to say that essentially they do not exacerbate the seriousness and nature of the conduct already set out in the statement of facts and contentions. 

15.     Essentially the respondent’s argument is that the visa applicant contrived both the business visa and sports visa applications in order to visit the review applicant in Australia, and that her principal reason for wishing to visit Australia was not to be involved with the work of Mr Lunacharsky’s organisation involved with amputee soccer.

16.     I am not entirely convinced that that is so.  There are some undeniable features about this case.  Mr Belan’s father did come to Australia on a special talent visa and is involved in the work of disabled athletes.  Mr Lunacharsky who supported the visa applicant’s applications is clearly involved in amputee sports and came to Australia for the paralympics and he did enter into an arrangement, albeit perhaps at the suggestion of the review applicant’s father, to have the visa applicant involved in the work of promoting amputee soccer in Kazakhstan. 

17.     In my view, it would be legitimate for the visa applicant to create, in an open and transparent way, circumstances which would justify her visiting Australia on a short stay visa notwithstanding that such a visit would also satisfy an ulterior motive, (namely to meet up with the one she loved).  The reasoning in the Minister of State for Immigration, Local Government & Ethnic Affairs v Dhillon, a decision of the Full Federal Court dated 8 May 1990, contains reasoning which in my view is apposite to the present circumstances.  In that case at para.11, the court said:

“The primary judge referred in his reasons to the concept of marriage in Australian law, citing the remarks of Street CJ in R v Cahill (1978) 2 NSWLR 453 at p.458. As his Honour there pointed out, people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as ‘community expectations’. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example the hope of becoming eligible to reside in a particular country …” (emphasis added).

18.     Nonetheless there is a very fine line between manufacturing or contriving a false situation, in order to create eligibility for a short stay visa and enjoying the by-product of a visit to which a visa applicant is legitimately entitled.  In this case, it is difficult to decide on which side of the line the visa applicant’s actions fall.  I am persuaded however, from two of her answers given in an interview at the Australian Embassy in Moscow on 18 June 2002, that the visa applicant was prepared to “gild the lily” about the circumstances which entitled her to visit Australia, and that her information lacked the level of candour required of persons who apply to immigration officials for visas to enter this country.

19.     Those answers are referred to in the respondent’s statement of facts and contentions, namely that she stated she was the administrator of a volleyball team on interview, but the administrator of a football team in her business visa application and that when asked why she had not advised the Australian Embassy that she no longer worked for Sportsclub Glotur at a time when her business visa application was undetermined, she said that she did not inform the Embassy because Mr Lunacharsky told her that it was likely that her business visa application would be refused.

20.     It follows that in my view, the applicant went too far in endeavouring to promote a state of affairs which would entitle her to a short stay visa, and although I am satisfied that on the material before me the visa applicant may well have been legitimately entitled to either a business visa or a short stay visa for the purposes of promoting amputee football, a sport in which she was genuinely involved in Kazakhstan, she transcended the requirements of candour and frankness in pursuing those applications. 

21.     It follows from what I have said that  the visa applicant has failed to satisfy me that she passes the “character test”.

22.     I turn now to a consideration of the residual discretion, which I retain to nevertheless grant the visa, and to a consideration of Ministerial Direction No. 21.  Relevant considerations include the protection of the Australian community, the expectations of the Australian community and (generally of less individual weight) the question of genuine marriage to an Australian citizen and the compassionate claims of the Australian partner.

23.     As to the seriousness and nature of the conduct, it is trite to say that the provision of false and misleading information to immigration officials in connection with a visa application is of the utmost importance.  The provision of false and misleading information is itself an offence, which is considered a serious offence against the Act (para. 2.6(c) of the Ministerial Direction makes that clear).

24.     In Lachmaiya v Department of Immigration and Ethnic Affairs (No. M93/733 AAT No.295) Deputy President McMahon noted at para.15:

“The observance of truth in dealing with officials in migration matters (particularly where the truth is known only to the person making the statement is of fundamental importance to the control mechanism which this country exercises in visa applications when dealing with the many reasons for coming to Australia.  To lie consistently, as Mr Lachmaiya has over a period of years, is to subvert the administration and, in the context of the Act, to demonstrate that Mr Lachmaiya is not a person of good repute or good character.  Australia can have no confidence that he would not again transgress in matters where truth and good faith could be deceptively withheld.”

25.     In the present case however, I take the view that the seriousness and nature of the visa applicant’s conduct is tempered by her relative youth and the inference I draw that she was influenced by others, namely the review applicant’s father and his friend Mr Lunacharsky, who no doubt were well‑meaning, but who in their attempts to provide a legitimate basis for the visa applicant to obtain a visa to visit Australia created a situation which led to her transgressing Australia’s immigration laws. 

26.     Given that the visa applicant’s conduct springs from her desire to join her husband in Australia on a permanent basis, I am of the view that recidivism is not an important factor in this case.   There is no real likelihood that her conduct as evidenced in this case would be repeated. 

27.     I take account of the need to deter others from such conduct and of the fact that the Australian community expects that people who lie to obtain visas will not to be rewarded with the grant of a visa once their deception is uncovered.   Nonetheless the Australian community, as has been observed by this Tribunal on numerous occasions, expects the Act to be administered humanely and compassionately where appropriate. 

28.     Turning to the compassionate claims of the review applicant as an Australian citizen married to the visa applicant, it is noted by the respondent in submissions that the marriage took place prior to the couple knowing whether the visa applicant’s visa would be granted and that they gave little thought to difficulties which would arise if it was refused.   It is not argued however that the marriage is not genuine. 

29.     All of the evidence in this case points to a genuine and loving marriage between two young people whose love for each other blossomed over a period of time and culminated in marriage.

30.     It is suggested on behalf of the respondent that the couple could live together in Kazakhstan and I accept that that is probably the case.  The review applicant is however, an Australian citizen and one does not likely deprive an Australian citizen of their own country “and of its protection and support, socially, culturally and medically and in the many other ways evoked by, but not confined to, the broad concept of lifestyle” (Vaitaikiv Minister for Immigration & Ethnic Affairs (1998) 150 ALR 608 at 614 per Burchett J).

31.     On balance, I conclude that, in the individual circumstances of this case, that the seriousness and nature of the visa applicant’s conduct and the expectations of the Australian community are outweighed and are to be subjected to the “other consideration”, of the genuine marriage of the review applicant to the visa applicant, an Australian citizen and to his compassionate claims. 

32.     The order of the Tribunal is that decision under review be set aside and that the matter be remitted to the respondent with a direction that the visa applicant’s visa not be refused on character grounds.

I certify that the 3 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  8, 16 July 2003 and 1 December 2003
Date of Decision  23 December 2003
Counsel for the Applicant         Mr Greg Hughen
Solicitor for the Applicant          Erskine Rodan and Associates
Counsel for the Respondent     Mr Derek Wood
Solicitor for the Respondent     Blake Dawson and Waldron